Court Hearing Thursday 14th September

[dannybhoy]

I hadn’t bothered posting before as I didn’t see the point in offering a running commentary on issues such as LBA sent etc.

 

It has now however come to the point that despite my assurances to my girlfriend (its her claim, only I have done all the work) that it wouldn’t come to this, as a result of Lloyds TSB’s intransigence, we are in Court on Thursday morning.

 

I have posted this here (Scotland rather than litigation) as there seems to be a shortage of actual hearings in Scotland, and this may help people in the future.

 

The claim (£450 + interest and costs) was lodged at Dumfries Sheriff Court on July 19th, with a return date of Thursday 7th September, and the hearing set for Thursday 14th September. Since the claim was lodged, we have heard nothing from Lloyds TSB, or its Solicitor. At no time even during our initial correspondence was any kind of offer made.

 

On Friday, we received a letter from The Sheriff Court, advising that Lloyds TSB had submitted a defence. Whilst I think they are meant to send it to us at the same time as the Court, we still haven’t received a copy direct from Lloyds.

 

I went into the Court Yesterday, and was given a copy of the defence. Having studied it. I would describe it as a ‘cut and pasted’ defence, which twice refers to ‘The Claimant’, this being the term in England whilst in Scotland the term should be Pursuant.

 

Whilst I am a little apprehensive about appearing in Court, in some respects I am looking forward to it, and confident that they will capitulate prior to the next hearing. Then again, I’ve been wrong all the way through so far!

 

I will let you know what happens on Thursday.

[mel5]

I'll be watching with interest as I have a hearing at Stirling Sheriff Court on 10th October. Like you I have heard zilch since the claim was lodged on 10th August.

 

My total claim is for £3410.91 plus interest and costs. What I would like to know is if they offer to settle before the hearing will it be for my full claim or for the 1st £750 and I'll need to go back to court again another 4 times.

 

Can anyone enlighten me?

 

Mel5

[mcarreno]

Hi

 

Good luck and keep everyone informed

 

 

M

[msneddon]

Good luck. Let us know how you get on. I will be watching with interest as my court date is 28 Sept

[gargoil]

Good luck DannyGer! I'd say there's a good chance they won't turn up or you may get a phonecall from them!But I guess it's best to prepare just in case.

 

(PS. Hope your team does well tonight and keeps the Scottich end up! )

[bandonbhoy]

The Best of Luck and all our good wishes from ythis site to be with you tomorrow.

[stevokenevo]

Good luck Danny, i have a case against LTSB also, my return date is oct 5th with hearing date oct 12th. i have heard nothing either, keep us posted as we shall be watching with interest.

[reidnet]

Good luck m8, shame court is so far away from me, would have come down to give some moral support..

 

Ian

[dannybhoy]

I was just about to post thanking you all for your good wishes, and advising that I have prepared a case, however I have just checked the online banking and some time today, a credit of £489 has been made, marked ‘settlement of claim’.

 

We have still had no communication from Lloyds TSB and I don’t know what to do now.

 

I assume they reached the figure of £489 by taking the amount of the claim (£450) and adding the Court Costs (£39).

 

This fails to address the question of interest, which I had claimed from the date of service in each case, amounting to £136.08. There was always some doubt as to whether or not we are entitled to do so, however we are definitely entitled to interest from the date the claim was lodged, even though it would only be a few pounds.

 

I don’t want the Sheriff to think I am being greedy, and don’t know what to do.

 

Any suggestions?

[gizmo111]

I was just about to post thanking you all for your good wishes, and advising that I have prepared a case, however I have just checked the online banking and some time today, a credit of £489 has been made, marked ‘settlement of claim’.

 

We have still had no communication from Lloyds TSB and I don’t know what to do now.

 

I assume they reached the figure of £489 by taking the amount of the claim (£450) and adding the Court Costs (£39).

 

This fails to address the question of interest, which I had claimed from the date of service in each case, amounting to £136.08. There was always some doubt as to whether or not we are entitled to do so, however we are definitely entitled to interest from the date the claim was lodged, even though it would only be a few pounds.

 

I don’t want the Sheriff to think I am being greedy, and don’t know what to do.

 

Any suggestions?

 

it is a bit late now but have you rang the bank and asked what the payment is - call their bluff and tell them that you will continue to court as you have only received partial settlement - your call, just a suggestion. Why is the interest in doubt?

[dannybhoy]

Gizmo,

 

I have had contradictory advice on the matter of interest. You are definitely entitled to it from the date you lodge the action, but there is some doubt as to whether or not you can claim it from the date of service.

 

Its too late to do anything now, and I will wait to see what further advice I receive. At the moment, I still intend going to Court in the morning.

 

I am sure the Sheriff will agree that LLoyds TSB has acted in a shoddy manner.

[bandonbhoy]

When you attend can you raise the question of compound interest due on those charges.Apologies if this is delt with somewhere in this thread.

 

But hey congratulations. Another winner

[dannybhoy]

My whole case, in which I had addressed each of the points in Lloyds defence now looks to have been a waste of time, insofar as in my opinion, they have now admitted liability.

 

Its now nearly six, and still no word from Lloyds. I still intend going to court in the morning, only I now feel more confident, and feel the focus has changed.

 

I’m not sure that Lloyds are allowed to settle unilaterally, without even having the decency to inform us. Unless something happens in the morning before the case, I will tell the Sheriff what has happened, how we found out, and say that the question of costs and interest has not properly been addressed.

 

It would be useful if someone could clarify the position on interest, as I don’t want to push my luck. Nonetheless, interest of some description is due, even if its only a couple a pounds, a point which Lloyds has overlooked.

 

As some of you have alluded to, I’m off out to watch the game. It’s also my birthday, however I’ll only be able to have four pints, as I don’t want to appear bleary eyed in front of the Sheriff.

 

I will check for further posts either when I come in, or in the morning.

 

Thanks again for your support, and I’ve already told my girlfriend that she will make the recommended 5% donation!

[sazz]

Hey, hope you get this before you go to bed...

[sazz]

I had a similar issue with BOS ( search for sazz v BOS).

 

I went to court and explained to the sheriff officer that they had addressed my claim of the charges, but they had failed to address the 8% judicial interest. As far as he was concerned, the claim was still valid as I hadn't received the FULL claim, which was charges back + 8% interest.

 

The court granted the decree for the full amount with interest, which you then enforce with a Messenger-at Arms Bailiff on your branch

They cannot ignore a decree in your favour....

 

I got as far as 3 days away from having various media and a bailiff to go into George Street in Edinburgh on Friday morning past, before I got everything I was entitled too

 

I wish you luck tomorrow, but just explain the failure to address the 8% and explain their sheer frustration of the legal and court process and you'll be fine

[gargoil]

Sazz, did you hav eto explain to the sheriffs officer/sheriff why you were claiming for 8% interest?

[grizzly]

Hi - Wish I'd seen this before, I'd have happily come down to give support - best of luck, let us all know how you go

[dannybhoy]

Went to Court today, and our case was called first, which was good insofar as we were out by 10:30, but bad in that we didn’t have a chance to see how things worked first. Nonetheless, I think we acquitted ourselves well.

 

The Sheriff began by saying that the Court had this morning received a letter asking for the claim to be dismissed, as the money had been refunded. I advised him that this was news to us, as we have had no communication from Lloyds TSB about this.

 

We also disputed the amount, when Elaine opened her big mouth and said we didn’t claim £489, with the Sheriff replying no, you claimed £450!

 

At this point I intervened and said the claim was for £450 + costs + interest. Following brief discussion, the Sheriff Clerk advised that £39 costs are all we are entitled to (despite the fact I have spent hours on this case).

 

The Sheriff went on to advise that had he issued a decree today in our favour, we would be entitled to interest at the Judicial rate. He did however accept my argument that had the money not been debited, it would have earned some degree of interest, and continued the case to October 12th to allow us to confirm the money had been refunded, an allow the question of interest to be addressed.

 

When we got back, there was a letter from Lloyds, dated the 12th, asking us to dismiss the claim as the money had been refunded. It also advises that the payment is in full and final settlement etc. It also refers to an ‘open letter of equal date’, which we have not yet received.

 

I will wait and see if this other letter arrives before contacting Lloyds on the matter of interest. I still don’t believe that the defender can unilaterally settle like this, and impose conditions, however at least the case is still pending.

 

I would also like to assure people that going to Court was not as bad as I had imagined it would be.

[cazza57]

hi

 

I am about to take to take my claim to the small court stage (its dumfries I will be using). Did you use the template to fill out the forms (did you need to use any other wording). At least I know Dumfries sheriff courts have seen this type of action before. Did you need to bring any evidence to the sheriff?

 

Thanks

 

Caz

[jengis]

Well done Dannybhoy, glad it is going in your favour!. Could you tell us the procedure in court as I think realistally most of us as not expecting to have to go that far.

 

Do you have to explain to the Sheriff why you should have the money? or is it enough to reference the legislation which states that the banks can't profit out of charges and as such you want them there to explain their charging mechanism (knowing that they won't of course!). Any more info would be great as I want to be prepared for the event if it comes to that! (Probably in Edinburgh!)

 

Jengis

 

PS: Check out number 32 in the small claims list!

Dumfries Sheriff Court Rolls - 14/09/06

[dannybhoy]

Jengis,

 

Thanks for that, but I was already aware of the Court list, as I printed it off this morning –all 10 pages!

 

The Lloyds TSB defence contained eight points, each of which I addressed in the preparation of the case. In the event, I didn’t have to explain anything to the Sheriff, but was prepared to do so.

 

I will reproduce Lloyd’s defence and my response below, as it may help, however I don’t know that what I have done is correct.

 

I did receive advice from Robertxc, who has been most helpful, and advised that the case should centre on point e, of schedule 2 of the UTCC Regulations.

 

 

Lloyds Defence (painstakingly reproduced by me)

 

1. The Defender Lloyds TSB Scotland plc (“the bank”) is a bank and whose registered office is Henry Duncan House, 120 George Street, Edinburgh, EH2 4LH. It is admitted that the Pursuers have been customers of the Bank at all material times and holds a ‘Select’ Account with the defender and numbered XXXXXXXXXXXXXXX.

 

2. By opening an account with the Bank, the customer enters into a commercial arrangement with the Bank for the provision of banking services. The Bank is entitled, as part of that arrangement, to charge for those services. At account opening a customer is provided with details of the Bank’s charges, currently in a leaflet a guide to our banking charges. By using the account, the customer acknowledges that the charges are incorporated into the contract. For personal customers, a number of services are provided for free, notwithstanding that they are an expense to the Bank. Such services presently include, but are not limited to, providing:

 

Cheques

Bank statements

The facility to make payments by direct debit and standing order

Debit cards

ATM’s (cash machines)

 

3. By maintaining the account in credit, or within any limit agreed with the Bank, the customer may avoid most if not all charges. If the customer fails to ensure that there are sufficient cleared funds in the account to cover payments, whether by cheque, debit card, standing order or direct debit, the customer makes a request for a payment to be made from the Bank’s own funds. If the bank makes payment, or returns the payment, it provides a service as specified in the leaflet and makes a charge in accordance with the terms of the contract. On page 1 of the leaflet, the Bank explains that “there are normally no charges for everyday banking at Lloyds TSB when your account is in credit.

 

When you use an agreed overdraft, there is no monthly fee and we only charge interest on the amount you are overdrawn each day. Where you go overdrawn without an agreement or where you use special service, such as copy statements, we will make a charge. This guide explains how these charges work, and when they will apply.

 

If you want to use a service that we haven’t listed, we’ll tell you the cost of that service before you give us the go ahead”.

 

4. There is no breach of contract: the charge therefore cannot be a penalty, consequently there is no requirement that the charge be a pre-estimate of the Bank’s loss.

 

5. The customer is given advance warning of charges being imposed; Statements show the charges, if any, the customer has incurred during the course of a month, and which will appear as debits on the following month’s statement. Customers are warned by letter when they go overdrawn or over their agreed limit with the Bank. If the customer fails to remedy the position, and payments such as standing orders and direct debits are refused then again the customer is warned by letter.

 

6. The charges are fair and reasonable, and it is denied that they are unlawful.

 

7.The customer is notified of the charges in plain intelligible language at the conclusion of the contract, and on each monthly statement. The charges are terms which relate to the price payable by the customer for a service provided by the bank, and pursuant to Regulation 6 of the Unfair Terms in Consumer Contracts Regulations 1999, are not subject to the assessment of fairness.

 

8. the premises:

 

8.1 the charges are for banking services, and are not damages or a penalty;

8.2 the Bank is entitled by contract to impose the charges, which are fair and reasonable;

8.3 it is denied that the charges are unlawful or contravene any statute or regulation.

 

9. The Claimant’s claim is denied in its entirety. It is further denied that the Claimant is entitled to the sum claimed or to any sum from the Bank.

 

 

My response to the points in the defence

The following points relate to the numbered points stated in Lloyds TSB’s Defence, in relation to the above named case.

 

1. The Pursuer does not dispute this point.

 

2. The Pursuer does not dispute this point.

 

3. The Pursuer does not dispute this point.

 

4. The Pursuer disputes this part of the defence. At no point in the Unfair Terms in Consumer Contracts Regulations 1999 is there any mention of breach of contract, therefore this part of the defence is both bogus and gratuitous.

 

5. The Pursuer does not dispute this point.

 

6. The pursuer maintains that these charges are neither fair nor reasonable and as such are unlawful under the terms of the Unfair Terms in Consumer Contracts Regulations 1999.

 

7. The Pursuer disputes this part of the defence. Schedule 2 of the Unfair Terms in Consumer Contracts Regulations 1999 sets out an ‘indicative and non-exhaustive list of terms which may be regarded as unfair’.

 

Part (e) of Schedule 2 states that [terms which have the object or effect of] “requiring any consumer who fails to fulfil his obligation to pay a disproportionately high sum in compensation” [may be regarded as being unfair.]

 

8. -

 

8.1 The Pursuer disputes this part of the defence, and maintains that the charges are indeed a penalty, for the reasons detailed at (7) above.

 

8.2 The Pursuer disputes this part of the defence, for the reasons outlined at (6) above.

 

8.3 The pursuer disputes this part of the defence, for the reasons outlined at (6) above, and further contends that the charges do indeed contravene regulations, namely the Unfair Terms in Consumer Contracts Regulations 1999.

 

9. The Pursuer disputes this part of the defence. The Pursuer maintains that the Pursuer is entitled to the sum of £450 (Four Hundred and Fifty Pounds) plus interest and the costs associated with bringing this action.

[Jane & Paul]

Hello Dannyboy,

 

Please let us know how you got on today, I really hope it went well.

 

Jane & Paul

[give_me_it_back]

Excellent work Dannybhoy. Thanks for the breakdown of the defence. Very helpful for us Scots - as most if the information on the site relates to the English side.

[jengis]

Yep, thanks from me too dannybhoy, that's way more detail than I expected and I'm very grateful for you taking the time to do it .

 

That's probably cleared up the last bit of the jigsaw for me, I was comfortable with the rest and quite happy to go to court, I just didn't know what to do when I got there!!

 

I'm going to start going through my Data Protection Act requests now to various CC companies and banks, although I don't actaully get charged that much but we'll see anyway.

 

More interested for my mother, lots of charges! - I'm going to help her sort it out and hopefully claim back quite a lot. If it goes to court I have said I will represent her (small claims) I presume that's ok?

 

One other thing, I'm not sure whether to raise an actions at Edinburgh Sheriff Court or a smaller regional Court - both same distance - anyone any recommendations - e.g. big busy court or small quiet court?

 

Thanks again, I'll be watching your threads with interest!! (no pun intended!)

 

Jengis ;-)

[o0oliambeeo0o]

Hi Dannybhoy,

 

What a guy, great info in your thread, I did and im sure all fellow Scots will find this of great use. Im going down the summary cause route, keep us updated asto what LTSB do next.

 

Again well done mate.

 

Regards,

o0oLiamBeeo0o